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2016 DIGILAW 1041 (GAU)

Munindra Nath Konwar v. State of Assam

2016-11-23

ACHINTYA MALLA BUJOR BARUA

body2016
JUDGMENT : A.M. Bujor Barua, J. Heard Mr. A. Hasan, learned counsel for the petitioner, Mr. U.K. Das, learned counsel appearing for the respondent No.4 and Mr. B. Talukdar, learned Standing Counsel appearing for the Secondary Education Department, Assam. 2. The case of the petitioner is that he had joined the service as a Subject Teacher in the Bortola Higher Secondary School on 27.01.1992. On the other hand, the respondent No.4, who was initially working in the Naharkatia Higher Secondary School, was transferred to Bortola Higher Secondary School on 22.05.1995, but his transfer was on his own request. Accordingly, the learned counsel for the petitioner submits that the petitioner having joined in the Bortola Higher Secondary School on 27.01.1992, whereas on the other hand, the respondent No.4 having transferred on his own request to the Bortola Higher Secondary School on 22.05.1995, the petitioner is senior to the respondent No.4. 3. In the instant petition, the petitioner challenges a seniority list of the teachers of the school, wherein the respondent No.4 is shown to be senior to the petitioner. None of the learned counsel for the parties could produce a copy of the said seniority list. However, the parties do not dispute the existence of the said seniority list and the contents thereof. Accordingly, it is construed that the seniority list which is under challenged, is in existence and the said seniority list depicts the respondent No.4 to be senior to that of the petitioner. 4. Mr. U.K. Das, learned counsel appearing on behalf of the respondent No.4 states that the respondent No.4 was initially appointed in Naharkatia Higher Secondary School on 04.02.1988. The learned counsel submits that the respondent No.4 having been appointed as a Subject Teacher on 04.02.1988 is entitled to the said period from 1988 to 1995 to be counted towards his seniority and accordingly justifies that the impugned seniority list, where he is shown to be senior to the petitioner is valid and justified. Mr. The learned counsel submits that the respondent No.4 having been appointed as a Subject Teacher on 04.02.1988 is entitled to the said period from 1988 to 1995 to be counted towards his seniority and accordingly justifies that the impugned seniority list, where he is shown to be senior to the petitioner is valid and justified. Mr. U.K. Das, learned counsel for the respondent No.4, further refers to the order dated 19.05.1995, which is annexed as Annexure-A to his affidavit in opposition, to submit that the order of transfer of the respondent No.4 as Subject Teacher in Chemistry, Naharkatia Higher Secondary School to the second post in Chemistry at Nazira Bortola Higher Secondary School, does not indicate that the transfer had been effected at the own request of the respondent No.4. 5. Against this contention, Mr. A. Hasan, learned counsel for the petitioner has brought to the notice of this Court the copy of the particulars of the teachers, who wants to transfer, which is annexed as Annexure-1 to the affidavit in reply of the petitioner. The said particulars of teacher, indicates that the respondent No.4 had obtained the order of transfer on his own request. Accordingly, Mr. Hasan, learned counsel submits that the respondent No.4 is not entitled to have his period of service from 1988 to 1995 to be counted towards determining the seniority in the Nazira Bortola Higher Secondary School. 6. The law relating to entitlement of the earlier period of service in the case of a transfer of own request, had been settled by the Full Bench of this Court in Jamal Uddin Ahmed and others v. State of Assam and others, reported in 2012 (1) GLT 1, wherein in paragraph-73, it has been held that "own request inter-school transfer were not contemplated in 1982 rules either in the public interest or in the administrative exigencies and the 2003 Rules carries the same mandate explicitly enjoying the consequence of loss of past services for seniority of the incumbent concerned in such an eventuality." 7. Accordingly, as per the aforesaid pronouncement of the Full Bench, the respondent No.4 is not entitled to have the period from 1988 to 1995, which he served in the Naharkatia Higher Secondary School to be counted towards his seniority. 8. Accordingly, as per the aforesaid pronouncement of the Full Bench, the respondent No.4 is not entitled to have the period from 1988 to 1995, which he served in the Naharkatia Higher Secondary School to be counted towards his seniority. 8. Be that as it may, the respondent No.4 had been held to be senior to the petitioner although he had joined the school on his own request of transfer in the year 1995 and that has already attained its finality by virtue of the impugned seniority list. In the Jamal Uddin's case (Supra), in paragraph-73, it has also been provided that the aforesaid determination regarding loss of past services for seniority should not be re-opened in the cases where the finality in the meantime has already been settled. The case where departmental orders securing seniority, even on such inter-school transfers have attained finality and no challenge thereto has been made before any judicial forum on the date of pronouncement of the judgment of the Jamal Uddin's case, such cases should not be re-opened on the basis of the verdict in the Jamal Uddin's case. The case of the petitioner being solely based on the verdict of the Full Bench of this Court in Jamal Uddin's case, in order to substantiate that the respondent No.4 is not entitled to the seniority for the period of his service in the Naharkatia Higher Secondary School for the period 1988 to 1995, the aforesaid provisions of paragraph-73 of the said judgment regarding non entitlement of seniority for the past period, would not be applicable and the petitioner would now be not entitled to re-open the case of seniority against the respondent No.4. The determination of seniority between the petitioner and the respondent No.4 had already been settled by the impugned seniority list and this writ petition challenging the said impugned seniority list has been filed on 15.05.2012. On the other hand, it is seen that the judgment in the Jamal Uddin's case had been rendered by this Court on 20.12.2011. Hence, this is a clear case, where a settled position of seniority has been sought to be re-opened on the basis of the verdict in the Jamal Uddin's case after the delivery of the said judgment and hence, as per the provisions of paragraph-73 of the Jamal Uddin's case, such re-open cannot be permitted. 9. Hence, this is a clear case, where a settled position of seniority has been sought to be re-opened on the basis of the verdict in the Jamal Uddin's case after the delivery of the said judgment and hence, as per the provisions of paragraph-73 of the Jamal Uddin's case, such re-open cannot be permitted. 9. Accordingly, this writ petition is of no merit and stands dismissed. However, no order as to costs.